Lake Erie and Western Railway Co. v. Parker

• Citation: 94 Ind. 91
• Decision Date: 08 March 1884
• Docket Number: 10,884
• Parties: Lake Erie and Western Railway Company v. Parker
• Court: Indiana Supreme Court

94 Ind. 91

Lake Erie and Western Railway Company v. Parker

No. 10,884

Supreme Court of Indiana

March 8, 1884

From the Madison Circuit Court.

R. S Gregory and A. C. Silverburg, for appellant.

G. H Koons, for appellee.

OPINION

Bicknell C. C.

This was an action by the appellee to recover the value of a mare killed upon the appellant's road by its train of cars where the road was not securely fenced. The appellee had a verdict for $ 125; judgment was rendered thereon. The only error assigned by the appellant is overruling its motion for a new trial.

There were several reasons for a new trial; the appellant, in its brief, discusses only the sufficiency of the evidence, the admission of certain testimony of the witnesses McClellan Morgan and John Parker, and an alleged error of the court in giving to the jury, of its own motion, instruction No. 3. The appellant claims that the evidence fails to show that the mare was struck by the train. It is not necessary that this should be proved by a witness who saw it; it is sufficient if facts are shown from which the jury may reasonably infer that the animal was struck by the train. We think that in this respect there was evidence tending to support the verdict, which, therefore, can not be disturbed upon the evidence.

McClellan Morgan testified: "I was going down to the store and I waited near the crossing until the train got past; before the train reached the crossing the mare went on the railroad, and went ahead of the engine, running east, and after the engine passed me I could not see anything more of the mare until she jumped from the track on the north side of the road; after the reflection of the headlight was off of her I saw no more of her until the next morning at about 8 o'clock; she was then lying about 150 or 200 yards from the railroad; she appeared to be nearly dead; she had her right hind leg broken just above the hock-joint; the bone was broken plumb off, and was hanging by a small piece of the skin; I was on the north side of the road and saw her go off by the reflection of the headlight; the engine was about twenty feet, as near as I can tell, from the mare when she first got on the track, and it was about fifty yards, I believe, to where she went off; at the time the mare went off the track it appeared to me that the engine was right to the mare, but I think she was not struck; I did not think so until the next morning; I saw her run off on the north side."

Question by appellee: "Tell the jury whet your best judgment is, from what you saw there, as to whether the engine struck the mare or not?" To this question the appellant objected, because it was irrelevant and immaterial, and sought the opinion of the witness instead of the facts. The objection was overruled, and the witness answered: "My opinion is that the engine struck the mare, from what I saw." The appellant, in its brief, treats this answer as having gone to the jury, but the record shows that it was stricken out by the court on the motion of the appellant immediately.

The witness continued: "I was about fifteen feet from the mare when she passed on to the railroad; she was going tolerably fast; when she passed off the track there was no indication of her being crippled; I don't think she limped, if she did I did not notice it."

Question by appellee: "You may tell the jury whether there was any other way there, anything else that could have produced that injury; if you know of anything there except the railroad?" The appellant objected to this question, for the reason that "it was irrelevant, incompetent and immaterial." This objection was overruled, and the witness answered: "There was nothing that I know of." The appellant's counsel, in their brief, discuss this matter as if the objection to the question in the court below had been that the question sought the opinion of the witness, but no such objection was there made. Objections, as to the admissibility of evidence, which were not made below, can not be made here. Bruker v. Kelsey, 72 Ind. 51; McIlvain v. State, ex rel., 80 Ind. 69. The objection that the evidence was "incompetent" was too indefinite to present any question. Cox v. Stout, 89 Ind. 422; Stanley v. Sutherland, 54 Ind. 339. The question was not irrelevant or immaterial; it was substantially this: "If you know of anything except the railroad which might have produced the injury, tell the jury what it was." The answer was: "Nothing that I know of." The same question, substantially, was put by the appellant's counsel, afterwards, in the following form: "What, if anything intervened, in the shape of obstructions, between the mare and the railroad the next morning?" The court did not err in overruling the objection made below to this part of the testimony of McClellan Morgan.

The witness John Parker testified that he had seen the mare lying in the street the next morning at 6 o'clock, and that where the mare left the railroad there was a descent to the adjacent ground of about two feet and then a ditch...